Milpitas City Council
April 15, 2025

ROTH ART GROUP
Ref No. - 032032
Santa Clara University, Fall 1999
University of California at Riverside, Spring 1997

FELLOWSHIPS AND HONORS
William J. Fulbright Scholarship for Research in Italy, 1997-98 Gladys Krieble Delmas Foundation, Dissertation Writing Grant, 1999-2000 University of Southern California, Dissertation Writing Award, 2002

PROFESSIONAL AFFILIATIONS
Accredited Senior Appraiser (ASA), American Society of Appraisers ASA NorCal Chapter Vice President, 2020-2022
ASA NorCal Chapter Board Member, 2022- present
ArtTable
J. Paul Getty Research Institute Affiliate

FOREIGN LANGUAGES
Italian, Romanian, Spanish reading ability
City of Milpitas
Liza Hickey, ASA, Appraiser
Effective Date: October 31, 2024
Replacement Value - New

ROTH ART GROUP
Ref No. - 032032
LIZA HICKEY, A.S.A.

EDUCATION
Master of Philosophy, European Fine & Decorative Art History, University of Glasgow (Christie’s Education) 2002-2003
Bachelor of Arts, Psychology, Minor, Art History, University of California Santa Barbara, 1996 -2000
American Society of Appraisers (ASA), Accredited Senior Appraiser American Society of Appraisers, Accreditation Program
Introduction to Personal Property Valuation (PP/GJ201), 2009 Personal Property Valuation Methodology, Research and Analysis (PP/GJ202), 2010
Appraisal Methodology: Report Writing (PP/GJ203), 2010
Insurance and the Legal Environment (PP/GJ204), 2011
Uniform Standards of Professional Appraisal Practice (USPAP), 7-Hour Update, June 5, 2024

EMPLOYMENT
2024-Present
Roth Art Group: Head of Appraisal Services, Decorative Art & Antiques Appraiser Conduct professional art appraisals for insurance coverage, estate planning and tax, charitable donations, division of property, damage/loss claims, bankruptcy, and collateral valuations.

Offer project management, art market analysis, trend monitoring, and provide informed advice to clients to make strategic decisions within the art market. 2023-2024
Applied Art Appraisals: President and Decorative Art Appraiser Accredited Senior Appraiser, American Society of Appraisers - Appraisal knowledge and expertise to solve valuation problems, with an emphasis on the functional arts, including ceramics, glass, metalwork, and furniture. Applied Art Appraisals offers professional, detailed, thorough and organized valuation reports for insurance coverage, charitable contribution and estate management.
2007-2022
Hobart Associates, Inc.: Associate Appraiser
Responsible for valuation of decorative arts, research, editorial assistance and office administration at small fine art and antique appraisal firm. 2011-2016
Freelance Writer, Editor, Researcher
Worked with Old Master prints and drawings, book specialist. Wrote, edited valuation analyses in collaboration with Fine Art appraiser
2004-2007
ABC-CLIO, Santa Barbara: Writer/Editor
Planned, researched, and produced numerous feature stories on a variety of geographic, political, and cultural topics. Wrote and edited news stories for use on educational web-based database. Collected and managed data on individuals (political leaders and cultural figures) and organizations (political parties, legislatures, cultural groups, et. al.) City of Milpitas
Liza Hickey, ASA, Appraiser
Effective Date: October 31, 2024
Replacement Value - New

ROTH ART GROUP
Ref No. - 032032

PROFESSIONAL AFFILIATIONS
Accredited Senior Appraiser (ASA), American Society of Appraisers ASA NorCal Chapter Secretary, 2016-2021
ASA NorCal Chapter Treasurer, 2022-2024
American Decorative Arts Forum, member, 2023-present
San Francisco Ceramics Circle, member, 2024-present
City of Milpitas
Liza Hickey, ASA, Appraiser
Effective Date: October 31, 2024
Replacement Value - New

ROTH ART GROUP
Ref No. - 032032

GLOSSARY OF TERMS
Appraisal. An unbiased, supportable estimate of a defined value by a person trained in research and analysis, and who is knowledgeable about the property being appraised and its class, and acts with accepted and professed standards of professional practice. Appraisals are written and oral reports which communicate value.

Auction. A scheduled event where works of art are sold at a specific time and place to the highest bidder.

Characteristics of Value. The characteristics of a property significant in the market such as condition, date, subject matter or color. Characteristics of value are primarily questions of fact and have an objective relationship to the marketplace.

Provenance. The listing of the previous ownership of a work of art, forming an essential part of its history. Provenance is usually given in the entries for works of art in scholarly catalogues of a particular collection or entries for works of art in scholarly catalogues of a particular collection or artist’s oeuvre.

City of Milpitas
Liza Hickey, ASA, Appraiser
Effective Date: October 31, 2024
Replacement Value - New

Case Studies

PERCENT FOR ART

PUBLIC CIP/DEVELOPMENT ASSESSMENT
One and one-half (1.5) percent of eligible projects
expenditures within the City’s annual Capital Improvement Projects.

PRIVATE DEVELOPMENT ASSESSMENT
One-half (.5) percent of building development costs for Private nonresidential building developments involving 2,000 square feet or more of new floor area and Private residential building developments of 20 or more new dwelling units.

IN-LIEU CONTRIBUTION
One-half (.5) percent of building development costs.

ANALYSIS AND KEY TAKEAWAYS
Opportunity areas:
• Expanding Private Development assessment for public
art to one and one-half (1.5) percent.
• Expanding the in-lieu contribution to one and one-half (1.5) percent.
• Provide clearer definition for eligibility for both private and public projects.

MILPITAS, CA
Palo Alto
Sunnyvale
Milpitas
Fremont
Emeryville
Morgan
Hill

PUBLIC CIP/DEVELOPMENT ASSESSMENT
One (1) percent of the project valuation within a variance of ten percent

PRIVATE DEVELOPMENT ASSESSMENT
Two (2) percent of project construction valuation

IN-LIEU CONTRIBUTION
Yes. The in-lieu fee shall be 1.1% of the building valuation. The additional .1% assessed is to be reserved in the public art fund for maintenance of the collection.

ANALYSIS AND KEY TAKEAWAYS
A public percent for art fee is not included in the ordinance, but Sunnyvale’s provision of a maintenance assessment
as part of the in-lieu fee is a sustainable approach to ensuring the collection’s ongoing maintenance, especially if Sunnyvale private developers are more frequently opting into the in-lieu fee.

SUNNYVALE, CA
Distance from Milpitas: 10 miles southwest
Population: 155,805
Area: 22.78 miles²

PUBLIC CIP/DEVELOPMENT ASSESSMENT
One (1) percent fee assessed for public projects.

PRIVATE DEVELOPMENT ASSESSMENT
The original 1987 ordinance was expanded in 2016 to include a private development assessment. For specified districts in the City, a fee per square foot of construction is assessed.

As of 2016, the fee was $0.52 per square foot. In Fremont, the amount of the fee shall be based on an amount per
square foot adopted by resolution each year, based on the Consumer Price Index in the San Francisco-Oakland-San
Jose area for the preceding year.

IN-LIEU CONTRIBUTION
Not for all projects, but for private development greater than 100,000 square feet, the developer has the option
to contribute 50% of the assessed fee, if public art is not installed.

ANALYSIS AND KEY TAKEAWAYS
A square footage model is highly desirable for communities anticipating significant private development in coming
years. This approach ensures a more accurate assessment is made.

FREMONT, CA
Distance from Milpitas: 12 miles northwest
Population: 230,504
Area: 88.46 miles²

PUBLIC CIP/DEVELOPMENT ASSESSMENT
One (1) percent of the City’s annual Capital Improvement Program (CIP) budget

PRIVATE DEVELOPMENT ASSESSMENT
One (1) percent of the estimated construction valuation

IN-LIEU CONTRIBUTION
Yes, one (1) percent of the estimated construction valuation

ANALYSIS AND KEY TAKEAWAYS
Palo Alto offers a very comprehensive suite of resources to inform Private Developer’s understanding of the public art fee, their options for the one (1) percent assessed, and how the Palo Alto Art Program can support these processes.

PALO ALTO, CA
Distance from Milpitas: 16 west northwest
Population: 68,572
Area: 26 miles²

PUBLIC AND PRIVATE CIP/DEVELOPMENT ASSESSMENT
Applicable for both private and public projects:

Morgan Hill is exploring adopting a one (1) percent fee for the total construction valuation of new residential building developments of 20 housing units or more; nonresidential development projects of 5,000 square feet or more; and new public buildings and new city parks.

IN-LIEU CONTRIBUTION
Yes. The in-lieu fee shall be equal to the one (1) percent assessment.

ANALYSIS AND KEY TAKEAWAYS
Milpitas’ current ordinance does not specify an in-lieu fee.

It is common for in-lieu fees to be a fraction of the total fee assessed, if art is not selected, but clarifying what this amount should be will ensure consistency from project to project. It is recommended that the maximum amount for
an in-lieu fee should be explored for revision in Milpitas’ ordinance.

MORGAN HILL, CA
Distance from Milpitas: 28 miles southeast
Population: 44,478
Area: 12.94h miles²

PUBLIC CIP/DEVELOPMENT ASSESSMENT
One and one-half (1.5) percent of building costs for public art is assessed for municipal development projects.

PRIVATE DEVELOPMENT ASSESSMENT
One (1) percent of building costs for public art is assessed for private developers of non-residential buildings with building costs in excess of $300,000.

One-half (.5) percent of building costs for public art is assessed for private developers of residential projects over 20 units allocated.

IN-LIEU CONTRIBUTION
Yes, but the amount is unspecified.

ANALYSIS AND KEY TAKEAWAYS
While the public percent for art fee aligns with Milpitas’, Emeryville assesses higher fees in private development.

EMERYVILLE, CA
Distance from Milpitas: 50 miles northeast
Population: 12,732
Area: 2.01 miles²

Title XI - ZONING, PLANNING AND ANNEXATION
Chapter 10 - ZONING
Section 14 Public Art Requirements for Private Development Section 14 Public Art Requirements for Private Development XI-10-14.01 Definitions
"Affordable Housing" is defined in Section XI-10-54.15.D of the Zoning Code.

Artist means an individual generally recognized by critics and peers as a professional practitioner of the visual, performing, or literary arts, as judged by the quality of that professional practitioner’s body of work, educational background, experience, public performances, past public commissions, sale of works, exhibition record, publications, and/or production of artwork. The members of the architectural, engineering, design or landscaping firms retained for the design and construction of a development project covered by these policies shall not be considered artists for the purposes of these policies. "Building Development Costs" means those construction costs as declared on building permit applications, and as accepted by the Building Official. Building permit applications shall include building, plumbing, mechanical and electrical permit applications for the project.
"Developer and/or Owner" means any individual, firm, limited liability company, association, partnership, political subdivision, government agency, municipality (other than the City of Milpitas), industry, public or private corporation, or any other entity that undertakes any construction within the City subject to the requirements in this Section 14.

Exterior place means any place, public or private, outdoor and exterior to buildings or structures and exposed to public view, including, but not limited to, buildings, parks, right-of-way medians and open spaces.

Local artist means an artist, as defined in this chapter, who resides in Santa Clara County, California.

Maintenance, with respect to artwork, means the required repairs or cleaning to keep a work of art in its intended condition, including preventative maintenance at scheduled intervals to curtail future deterioration, ordinary repairs or maintenance, including but not limited to, painting, repair, replacement, or installation of mechanical equipment.

Maintenance, with respect to ordinary property maintenance, means ordinary repairs or maintenance of a structure, including but not limited to, painting, roof repair, replacement, or installation of mechanical equipment. "Public Art" is a process which results in the incorporation of original works of art by artists in publicly accessible spaces and which serves a socio-environmental function identifiable with people; is accessible to the mind and the eye; is integral to the site and responds to the concept of place making; is integrated with the work of other design professionals; is of high quality; serves the City by enhancing the quality of life for citizens and contributes to the City's prestige; is unique to its moment in time and place.

Public art master plan means the Public Art Master Plan of the City of Milpitas, California that pertains to public art, as it exists or may be amended. The Plan shall provide a process for the systematic selection and acquisition of pieces of artwork and locations of art to be included in public places. "Public Art Program In-Lieu Contribution" means the percentage of Building Development Costs required herein.
"Public Art Projects" are projects which involve artists working through the public art process that result in the creation of original works in publicly accessible spaces that include but are not limited to paintings, mural decorations, inscriptions, stained glass, fiber work, statues, reliefs or other sculpture, monuments, fountains, arches, or other structures intended for ornament or commemoration, carvings, frescoes, mosaics, mobiles, Milpitas, California, Code of Ordinances Created: 2025-02-28 13:15:03 [EST] (Supp. No. 57)

photographs, drawings, collages, prints, crafts both decorative and utilitarian in clay, fiber, wood, metal, glass, plastics and other materials. Public Art Projects also include artists serving on design and development teams to identify opportunities to incorporate art in publicly accessible space. "Publicly Accessible Art" means art that is accessible to the general public.

Renovation means a project requiring a building permit where fifty percent (50%) or more of the exterior building area is being modified, rebuilt or improved by construction. For purposes of this chapter, "renovation" does not include the following:

1. Repair or reconstruction of structures which have been damaged by fire, flood, wind, earthquake or other casualty.

2. Historic preservation or restoration.

3. Development activity on existing, previously approved developments for the sole purpose of accessibility compliance.

Total construction costs means the total cost of the improvements, excluding land costs, approved for a development project, as indicated on the construction contract(s) for the subject improvements. (Ord. No. 38.821, § 3, 5/19/15)
XI-10-14.02 Purpose and Intent
This Section 14 is intended to promote the aesthetics and arts in the City of Milpitas by requiring the inclusion of a public artwork component in new private development projects in Milpitas. A policy is hereby established to require certain private developments to include Publicly Accessible works of art for placement on the development site or contribute a Public Art Program In-Lieu Contribution as a condition of project approval.

Developers and/or Owners are encouraged to employ Milpitas artists or arts organizations to fulfill the Public Art requirement.
(Ord. No. 38.821, § 3, 5/19/15)
XI-10-14.03 Contribution Requirements
A. Calculation.
a. Nonresidential Building Developments. All Pprivate nonresidential building developments involving 2,000 square feet or more of new floor area shall devote an amount not less than one and one-half of one percent (1.5%) of total construction costsBuilding Development Costs for acquisition and installation of Publicly Accessible Art on the development site. b. Residential Building Developments. All new Pprivate residential building developments of 1020 or more new dwelling units, including new construction, or the renovation or improvement of an existing building where fifty percent (50%) or more of a building is being modified, renovated, expanded, rebuilt or improved by construction, shall devote an amount not less than one and one-half of one percent (1.5%) of total construction costsBuilding Development Costs for acquisition and installation of Publicly Accessible Art on the development site.

B. Public Art Review. All proposed Public Art to be installed on a development site under this Section 14 shall first be reviewed and approved by the Art Commission for its artistic value and appropriateness in light of the size of the development project. The cost of the proposed Public Art shall not be the sole reason for rejecting the proposed Public Art. The Art Commission shall consider the following criteria in recommending approval or disapproval of a work of art:
a. Complies. The proposed art conforms to the definition of art contained in this chapter and will be created by an artist or local artist as defined in this chapter.

Created: 2025-02-28 13:15:03 [EST]
(Supp. No. 57)

b. Master plan. The proposed art meets the qualities described in the public art master plan, if applicable to the project.
c. Visual accessibility. The proposed art will be readily visible to the public and meet the location requirements of this chapter.
d. Quality. The proposed artist is professionally recognized in the medium, and the proposed art is of quality and enduring value.
e. Appropriateness to site. The proposed art is of design, scale, and material appropriate to the site. f. Compatibility. The proposed art is compatible with surrounding neighborhoods. g. Public Welfare. The proposed art is not detrimental to the public welfare and will not constitute a safety hazard.
h. Maintenance.The proposed art will not require extraordinary maintenance. i. Valuation. The proposed art meets or exceeds the public art assessment requirements of this chapter.
j. Location.The proposed location of the art and/or element(s) is in an exterior place and is appropriate to accommodate the size and scale of the proposed art and/or element(s), has or can reasonably accommodate any necessary supporting infrastructure and is in compliance with applicable city code requirements such as visibility triangle. Notwithstanding the foregoing, art purchased with the arts and culture fund or for public construction projects may be located inside publicly owned buildings.

C. Requirements. All private development meeting the applicability requirements of this section must elect one of the following assessment methods within ninety (90) days of the issuance of the first building permit or site work permit for a subdivision plat for any portion of the project: In-Lieu Contribution. a. Option 1: On-Site Artwork. At the discretion of the Developer and/or Owner, in lieu of installing on-site Public Art, the Developer and/or Owner may provide a Public Art Program In-Lieu Contribution to be deposited into the Public Art Fund for acquisition and placement of Public Art throughout the City. The Developer may contribute an amount equal to one and one-half (1.5) percent of the total construction costs for deposit to the public art fund. The public art assessment must be paid in full prior to the issuance of a certificate of occupancy except for subdivision plats which are required to submit the public art assessment in full at the time of recording of the final plat;
b. Option 2: Contribute to Fund.The Art Commission may allow a Developer and/or Owner to satisfy the public art requirement by a combination of installing Publicly Accessible Art on the development site and make a Public Art Program In-Lieu Contribution if the Art Commission determines that the location, siting or scale of the development site makes the installation of Publicly Accessible Art inappropriate or impossible for the purposes of satisfying the one and one-half percent (1.5%) requirement for installing Publicly Accessible Art on the development site.
c. Option 3. On-site Artwork and Contribute to arts and culture fund. Where there are combined uses within a development project or portion thereof, the arts fee shall be the sum of the fee requirements of the various uses listed above.
d. Option 4: Alternative Equivalent Proposal. Submit an alternative equivalent proposal to the Director of Planning.
i. The proposal shall be for the installation of freely accessible work of art on City public right-of-way, on property owned by other public agencies, or on another property under the control or ownership of the developer. The proposal may seek a combination of the public art assessment associated with multiple projects into one larger work of art in lieu of several small works of art.
ii. The proposal shall contain all information and establish all criteria set forth in section ______ of this Chapter, excluding the document required by ______.

Created: 2025-02-28 13:15:03 [EST]
(Supp. No. 57)

iii. The developer must demonstrate that the cost of the proposal will equal the cost of the public art assessment otherwise required under subsection ______ and not create unbudgeted costs for the City.
iv. The City may approve the proposal if it finds that:

1. The alternative equivalent proposal will further the purposes of this chapter as set forth under section ______; and

2. The proposed location of the alternative equivalent proposal is in reasonable proximity to the location of the site(s) generating the work of art requirement, in order to avoid clustering of all public art in one location; and

3. The cost of the proposal will be equal to or greater than the cost of the public art assessment that would otherwise be required under Subsection ______; and

4. The developer has established to the satisfaction of the City that the alternative equivalent proposal will create freely accessible public art in the City to an equal or greater extent than installation of the public art on the individual project site or a contribution to the Fund.

5. In approving a proposal, the City may impose reasonable conditions of approval requiring the developer to enter into agreements with the City or other public agencies or private parties in order to memorialize the legal obligations of all parties involved with the alternative equivalent proposal.

D. The public art assessment for residential development projects will be calculated on a plat by plat basis.

Total construction costs for purposes of calculating the public art assessment will be based on the total construction costs for all property depicted on each plat included within the residential development project.

E. Notwithstanding the foregoing, the public art assessment for any single project, cannot exceed one hundred thousand dollars ($100,000.00).

F. Subsequent Removal of Public Art or Alternative Compliance Space. If the Developer and/or Owner satisfies the Public Art requirement in accordance with subsection (A)(1), (A)(2), above, the Public Art previously installed on the development site may only subsequently be removed if the Developer and/or Owner makes a Public Art Program In-Lieu Contribution equivalent to the original amount to the Public Art Fund.

G. Exclusions. The requirements of this Section 14 shall not apply to:
a. an Affordable Housing development with a minimum of 20 percent Affordable Housing units if the Developer and/or Owner demonstrates to the satisfaction of the City Council that said requirements would cause the development project not to be economically feasible. b. Transitional housing
c. Ordinary property maintenance.
d. Repairs and restoration resulting from fire, flood, windstorm or other casualty or natural disaster, as determined by the building official.
e. Industrial and commercial development that is not open or accessible to the general public due to the storage or use of hazardous, radiological, or infectious materials, national security reasons, or other reasons related to the health, safety, or security of the public. (Ord. No. 38.821, § 3, 5/19/15)
XI-10-14.04 Public Art Fund
Public Art Program In-lieu Contribution shall be placed in the Public Art Fund. The fund shall be used exclusively to (1) provide sites for works of art, (2) acquire and install works of art, (3) maintain works of art, or (4) fund other administrative costs associated with the Public Art Program. The Art Commission shall recommend utilization of monies in the Public Art Fund to the City Council.

Created: 2025-02-28 13:15:03 [EST]
(Supp. No. 57)

(Ord. No. 38.821, § 3, 5/19/15)
XI-10-14.05 Compliance
Compliance with the provisions of this Section 14 shall be demonstrated by the Developer and/or Owner at the time of filing the Building Permit application as follows: (a) payment of the full amount of the Public Art Program In-Lieu Contribution, or (b) written proof to the Building Department and the Public Art Program of a contractual agreement to commission or purchase and to install the requested artwork on the development site by a date approved by City. The value of the Publicly Accessible Artwork shall be independently verified by a third party unrelated to the Developer and/or Owner and submitted to the City with the contractual agreement at the sole expense of the Developer and/or Owner. The Developer and/or Owner shall provide the City with proof of installation of the requested artwork on the development site or proof of full payment of the Public Art In-Lieu Contribution before issuance of the certificate of occupancy, unless the City has approved some other method of assuring compliance with the provisions of this Section 14. In the case of installation of Public Art on the development site, the Developer and/or Owner shall maintain said artwork in proper condition on an ongoing basis.
(Ord. No. 38.821, § 3, 5/19/15)
XI-10-14.06 Violations of this Section
In addition to other fines or penalties provided by State or municipal law, the City may revoke or suspend any permit granted to any Developer and/or Owner who violates the provisions of this Section 14. (Ord. No. 38.821, § 3, 5/19/15)
****SECTIONS PROPOSED FOR ADDITION****

1. Sec. ___________. Inclusion of art at private development site.

1. Location. Artwork must be located in an exterior, publicly accessible place.

2. Process. If the developer chooses to provide artwork at the site of the private development, the developer must comply with the following process:
a. Escrow and accounting of funds for artwork. The developer must submit documentation to the city showing a deposit for public art was made with the developer's attorney or escrow agent into an escrow account not more than ninety (90) days after the issuance of the first building permit or site work permit for subdivision plats, in an amount equal to one and one-half percent (1.5%) of the total construction costs.
b. Art consultant. If the developer chooses to provide artwork on site, the developer may utilize up to twelve percent (12%) of the escrowed art deposit to retain an art consultant to assist in the selection and procurement of the required work of art. The art consultant cannot have a financial or other relationship with the artist or developer, or any ownership in the artwork purchased by the developer. The artist is not entitled to the art consultant fee. c. Artist selection. Selection of the artist will be the responsibility of the developer. The selected artist must be an artist as defined in this chapter. The commission of the artist must be by written contract between the developer and artist.

Created: 2025-02-28 13:15:03 [EST]
(Supp. No. 57)

3. Application for approval of proposed art. An application for approval of the work of art must be made to the Art Commission within ninety (90) days of the issuance of the first building permit or site work permit for subdivision plats. The application must include:
a. Artist's qualifications, including resume and portfolio establishing the artist's credentials. b. Detailed description and depiction of the work of art and its location on the site. c. Drawings and renderings of the proposed work of art, in terms of size, scale, color, shape, and materials in sufficient detail to provide a clear understanding of the art. d. Appraisal of the value of the art.
e. Documentation showing that a deposit for public art was made into an escrow account. f. Maintenance program required for the artwork.
g. Proposed restrictive covenant running with the land that binds the property owner's successors and assigns to retain and maintain the artwork in compliance with this chapter, as more specifically described in section ______.
h. Compliance with public accessibility (ADA) requirements.

4. Board review of contribution of art. The Art Commission shall review the proposed artwork based on the criteria established in section ______ and shall recommend to the city council whether to approve, deny, or approve with conditions the selection and location of the artwork with sensitivity to the aesthetic and cultural traditions and the history of the city and to the character of the surrounding neighborhoods.

5. Appraisal. The value of the Publicly Accessible Artwork shall be independently verified by a third party unrelated to the Developer and/or Owner and submitted to the City with the contractual agreement at the sole expense of the Developer and/or Owner. Such appraisal will be paid for by the developer from the escrowed art deposit.

Sec. ___________. Ownership and maintenance of artwork installed on private property.

1. Artwork installed on private property pursuant to the requirements of this chapter is the property of the property owner. Title and ownership of the artwork transfers in whole or in part to any successor in interest of the property. The property owner shall be responsible for maintenance of the artwork in good condition at all times, as determined by the city. The property owner shall be responsible for ensuring that the public's view of the artwork is maintained, and that no vegetation or additional construction obstructs the public's view. Maintenance includes any associated landscaping or related improvements.

2. The owner of any property containing artwork installed in compliance with this chapter must include restrictions by recorded covenant that require retention and maintenance of the artwork in compliance with this chapter to run with the land and be binding on the owner's successors and assigns. The restrictive covenant must be recorded within ten (10) days of the issuance of the certificate of occupancy for the project. Any such restrictive covenant must be approved by the city attorney prior to recordation.

Sec. ___________. Removal or replacement of artwork installed on private property.

1. Artwork installed in accordance with this chapter must remain on site in the approved location and cannot be altered, replaced, or removed except as provided in this chapter, or when deemed to be unsafe by the city building official, or require replacement due to destruction or casualty to the artwork.

2. All replacement art must equal or exceed the value of the original artwork and must not be less than the original public art assessment requirement. If the artwork is to be replaced, the Art Commission shall review the proposed artwork and shall recommend to the city council whether to approve, deny, or approve with conditions the selection of the artwork in accordance with the arts and culture implementation guidelines.

Created: 2025-02-28 13:15:03 [EST]
(Supp. No. 57)

Sec. ___________. Enforcement.

1. Certificate of Occupancy. Unless an alternative deadline is established in a development order, or a time extension is granted by the planning director, no certificate of occupancy for a project subject to the public art assessment pursuant to section ______ will be issued until the artwork is installed and/or the full art assessment has been paid to the city.

2. Other remedies. The provisions of this chapter may also be enforced through any remedy available to the city in law or in equity. Violations may also be enforced through the code enforcement provisions of this code; or the city may institute a civil action in a court of competent jurisdiction to seek injunctive or other relief to enforce compliance with the terms of this chapter or any rule or regulation promulgated under this chapter, to enjoin and prohibit said violation or to compel the performance of actions which will result in compliance with this chapter. These remedies are cumulative, and the use of any appropriate remedy does not constitute an election of remedies by the city. The use of one remedy does not preclude the use of any others.

Created: 2025-02-28 13:15:03 [EST]
(Supp. No. 57)

Milpitas, California

PUBLIC ART PROGRAM POLICY
EFFECTIVE [ ]
Introduction 1
Definitions 1
Roles and Responsibilities 5
Milpitas Mayor & City Council 6
Arts Commission 6
Public Art Administrator 6
City Manager and City Staff 7
Collection Management 8
Donations 8
Donation Requirements 8
Donation Conditions 9
Donation Proposal Procedures and Review Process 9
Ownership 9
Criteria for Evaluation 9
Acceptance and Accession of the Artwork 10
Removal, Relocation, or Deaccession of Donated Artwork 11 Art on Loan or Temporary Display on City-owned Property 11 Collection Maintenance 13
Maintenance Guidelines for Acquiring New Works 13
Deaccession 14
Removal from Public Display 14
Provision for Emergency Removal 15
Criteria for Deaccession 15
Deaccession Application Process 16
Deaccession Application Review Process 16
Collection Management Best Practices 18
Public Art Program Update 19
Use of Funds 20
Uses for Funds 21
Uses for Funds in Mural Projects 21
Public Art Acquisition 22
Goals of the Selection Process 22
Purchasing Procedures 22
Artist Selection Methods for Acquiring Existing Artwork 22 Artist Selection Methods for Commissioning New Artwork 23 Artist Services Procurement 24

A
rtistSelectionProcessforArtworkAcquisition.24
ArtistSelectionProcessandResponsibilities24
ArtistSelectionCommittee25
ProjectImplementationProcessforSite-SpecificArtwork.25
MuralProgramPolicy28

Introduction
The City of Milpitas has adopted Ordinance 271.1, adding the public art policy to the City of Milpitas Municipal Code (Title V, Chapter 20). This Policy includes the following sections: Roles & Responsibilities; Collection Management; Public Art Program Update; Use of Funds; Public Art Acquisition; and Mural Program Policy. Collectively the Policy administers the Public Art Plan and regulates Public Art pursuant to Title V, Chapter 20.

This policy establishes guidelines to ensure a consistent decision-making process related to the acceptance, placement, display, and long-term maintenance of public art funded in-full or in-part by the City, and/or public installed on City-owned property. The following elements have been considered in developing a public art policy for the City:

A. Develop a dynamic, high-quality collection of public artworks for the City and its residents
B. Involve artists of diverse backgrounds, representative of the City’s diverse population C. Provide opportunities for local artists to advance their art practice through temporary and permanent public artwork opportunities
D. Enhance economic development and encourage cultural tourism E. Foster an understanding of public art and encourage public dialogue F. Enhance the aesthetic appeal of Milpitas
Definitions
For these policies, the following terms, phrases, words, and their derivation shall have the meaning given herein:

Accession, when used herein, shall mean a procedure for the acceptance of artwork into the Public Art Collection.

Artist, when used herein, shall mean an individual generally recognized by critics and peers as a professional practitioner of the visual, performing, or literary arts, as judged by the quality of that professional practitioner’s body of work, educational background, experience, public performances, past public commissions, sale of works, exhibition record, publications, and/or production of artwork. The members of the architectural, engineering, design or landscaping firms retained for the design and construction of a development project covered by these policies shall not be considered artists for the purposes of these policies.

Arts Commission, or Commission, when used herein, shall mean the City Council-appointed Commission that advises Council on matters pertaining to the arts in Milpitas, as well as serve as the advisory body for the Public Art Program. The Arts Commission was established by Ordinance 271.1 and is pursuant to MMC V-20-410 and the Arts Commission Bylaws.

City, when used herein, shall mean the City of Milpitas, California.

Creative amenity, when used herein, shall mean non-standardized enhancements made to public places. Community art projects may be categorized as “Creative Amenities,” but not as “Artworks.” These projects are not subject to the Milpitas Public Art Policy.

Commissioned Public Art, when used herein, shall mean artwork whose existence or creation was requested and/or funded by the Milpitas Public Art Program. Such art may be permanent or temporary. Commissioned Public Art may be solicited by the City (such as through a Request for Proposals or Call for Artists) as part of a Council-approved public art program or project or planned as part of another City project (such as a development) and is paid for in whole or in part by City funds or City-obtained grant funding.

Community Art, when used herein, shall mean creative projects that are collaborative, place-based initiatives wherein community members participate in the project’s creation. These projects are not subject to the Milpitas Public Art Policy.

Deaccession, when used herein, shall mean a procedure for the withdrawal of artwork from the collection and the determination of its future disposition.

Donation or Gift, when used herein, shall mean a contribution, from an external source to the City with or without any restriction from the donor, of any of the following: monetary (cash) contribution; endowment; personal property; real property; financial securities; equipment; in-kind goods or services; or any other asset the City accepts and for which the donor has received no goods or services in return, other than private acknowledgement of the donation or gift, if desired by the donor, notation of the gift on a City maintained record, which shall not be publicized but which is a public record, and the placement of a small plaque on the donated item, if desired by the donor. The terms "donations" and "gift" shall be synonymous in the context of this policy.

Donor, when used herein, shall mean the person or legal entity that proposes or provides a donation to the City.

Historic or civic objects, when used herein, shall mean an object that is historically or civically significant.

Lender, when used herein, shall mean an individual, group, organization, or other legal entity that proposes or provides a loan of artwork to the City Life Spans
● Temporary: less than one year and/or is meant to naturally deteriorate ● Short term: 1-10 years
● Medium term 10-25 years
● Long term 25+ years

Loaned Public Art, when used herein, shall mean public art that is loaned to the City by a third party for display on public property for an agreed upon life span.

Local Artist, when used herein, shall mean an Artist having primary residence with the City of Milpitas
Mural, when used herein, means a singular work of Public Art hand-painted, hand-tiled, or digitally printed (with property owner approval) on a building, structure, fence, or other object within public view. Its primary intent is to be artistic in nature, rather than purely information, creative signage and commercial signage. The work shall not contain text, graphics, or symbols which specifically advertise or promote a business, product, or service; and shall not promote a specific political party or candidate.

Public artwork or Public Art means works of art that are meant to be enduring original artworks located on, affixed or applied to City property. They shall be of the highest quality and craftsmanship.
● Public Art shall be permanently sited and an integral part of the landscaping and/or architecture of a building considering the historical, geographical and social/cultural context of the site.
● Public Art shall be constructed to a scale that is proportional to the scale of the building or property it relates to or is sited upon.
● Public artwork shall be displayed in a manner that will enhance enjoyment by the general public.

Public artwork may include
● sculpture, furnishings or fixtures, including but not limited to gates, walls, railings, streetlights or seating.
● water elements or features, environmental art consisting of landforms and artistic landscape composition, or artwork created from natural (non-man made) materials, and walkways if created by an Artist or design team that is led by an Artist. ● murals, photography and original works of graphic art, neon, glass, mosaics, or any combination of forms of media, furnishings or fixtures permanently affixed to a building or its grounds, or a combination thereof, and may include architectural features of buildings, if created by an Artist or design team that is led by an Artist. ● Functional art, such as street furniture
Public artwork does not include the following:
● reproductions by mechanical or other means of original works of art, except for limited editions, controlled by the artist, of original prints, cast sculptures, photographs or other works of art
● Art objects that are mass-produced of standard design such as playground equipment, benches or fountains;

● Decorative or functional elements or architectural details of a building designed solely by the building architect, unless such decorative and functional elements or architectural details are artist commissioned, t;
● Landscape architecture and landscape gardening that are designed by a Landscape Architect or Designer. Directional or wayfinding elements such as super graphics, signage, or color coding, except where these elements are integral parts of the original work of art or executed by artists in unique or limited editions. except where sculptural pieces are used to define gateways in Milpitas
● exhibitions and educational programs related to the work; ● and art that displays slogans, logos, mascots or commercial advertising ● Historical markers except where these are designed by an artist or affixed to and an integral part of an artwork.

The definition for Public Artwork is pursuant to MMC V-20-310.

Public Art Administrator or Administrator, when used herein, shall mean the Public Art Program administrator as determined by the City of Milpitas.

Public Art Collection or Collection, when used herein, shall mean art objects owned by the City of Milpitas, California, its agencies and authorities. Permanent Public Art must be located in a public place with public visibility, accessibility, and impact and shall have a permanence comparable to associated capital projects.

Public Art Fund, when used herein, shall mean the fund established by MMC V-20-610 and used to further the intent and purpose of public art activities in Milpitas and in the administration of the Public Art Policy. Monies in the Public Art Fund shall be used exclusively to (1) provide sites for works of art, (2) acquire and install works of art, (3) maintain works of art, or (4) fund other administrative costs associated with the Public Art Program. The Art Commission shall recommend utilization of monies in the Public Art Fund to the City Council. (Milpitas Municipal Code, Title XI, Chapter 10, Section 14)
Public Art Policy or Policy, when used herein, shall mean the policies recommended by the City Manager and approved by the City Council for the administration of the Public Art Plan.

Public Art Program, when used herein, shall mean the Public Art Program of the City of Milpitas, California. The Public Art Program intends to promote private and public programs to further the development and public awareness of, and interest in, the visual arts and fine crafts and encourage the integration of art into the architecture of municipal structures and commercial development projects in the City.

Public Art Program Master Plan or Plan, when used herein, is the plan developed by The City of Milpitas with input from the public and upon the review, advice and recommendation of the Arts Commission. The Public Art Program Master Plan shall establish and guide the development and implementation of a Milpitas Public Art Policy. The Public Art Program Master Plan shall:

● Survey opportunities throughout the City for suitable sites and areas for the placement of Public Art;
● Provide advice as to the potential priority for Public Art installations; ● Advise as to potential Public Artwork aesthetic themes; ● Advise as to the appropriate cataloging and maintenance of Public Artwork.

The Arts Commission shall recommend to the City Council the adoption of program guidelines, policies and procedures to ensure consistent administration of the Public Art Program.

Public Art Selection Committee means a small group of residents, stakeholders and Public Art Commissioner chosen to review and recommend artwork for a specific project.

Public place, when used herein, shall mean any area or property (public or private) which is accessible or visible to the general public a minimum of 8 hours per business day.

Publicly-owned land, when used herein, shall mean any land open to the public and managed by the City of Milpitas, California.

Public Art Program Update, when used herein, shall mean an annual document that outlines projects that are in-progress and will be initiated in coming fiscal years.

Purchased Public Art, when used herein, shall mean artwork that existed prior to its purchase by the Milpitas Public Art Program. Purchased Public Art is either solicited by the City (such as through a Request for Proposals or Call for Artists) as part of a Council-approved public art program or project or planned as part of another City project (such as a development) and is paid for in whole or in part by City funds or City-obtained grant funding.

Relocation, when used herein, shall mean a procedure for the movement of an artwork from one location to another.

Roles and Responsibilities
The Department of Recreation and Community Services shall administer the City of Milpitas’s Public Art Program, and may require partnership among several City Departments. Day-to-day responsibilities for the program will ultimately reside with the Public Art Administrator, and are outlined below in the Public Art Policy. The Public Art Administrator may be a City staff member or an outside consultant, and has an oversight role for all of the public art projects executed within the City. The Public Art Administrator will collaborate with City staff or outside contractors to execute projects

Milpitas Mayor & City Council
As the community’s elected officials, the Mayor and Council members are ultimately responsible for the outcomes of the Public Art Program. In some cases, the Mayor and Council members serve as the final approving authority for artwork acquisitions, donations, and other activities of the Arts Commission.

Arts Commission
The Milpitas Arts Commission is pursuant to MMC V-20-410 and the Arts Commission Bylaws.

This Commission advises on matters pertaining to the City of Milpitas’s Public Art Collection, wherein the City is funding the creation or acquisition of new artwork in public places, as defined above. The Arts Commission serves as a recommending body to the City Council. General responsibilities include:
● Promote the City’s public art to residents and visitors. ● Propose public art projects for the City to consider. ● Recommend sites for public art projects.
● Review and make recommendations on City-commissioned or purchased artwork, donations, or loan submissions.
● Review and make recommendations for artwork relocation or removal. ● Provide input on public art policies and procedures.
● With guidance from the Public Art Administrator, develop an annual Public Art Program Update, in consultation with the Mayor, City staff, and/or consultants that outlines what projects will be initiated in the coming fiscal year. ● Support duties and activities pertaining to the Milpitas Mural Policy ● Provide a member to serve on Public Art Selection Committees.

Public Art Administrator
The Public Art Administrator serves as a central point of contact and plays a key role in the administration of the City's Public Art Program, and will be overseen by the Recreation and Community Services Department. These duties may be assigned to a staff or consultant who will collaborate with various City departments to ensure the processes outlined in the Public Art Policy are carried out efficiently and appropriately. Their responsibilities encompass various aspects of public art processes, including planning, budget oversight, collaboration, artist selection, project management, and art acquisition, and outreach. Additional staff resources or outside consultants may be required to assist in implementing projects, particularly those of a larger scale. Responsibilities shall include, but are not limited to:

1. Work with various departments to develop potential projects for inclusion in the Public Art Program Update.

2. Coordinate with other City planning efforts.

3. Present the Public Art Program Update as part of the City’s regular budget process to the City Council.

4. Coordinate and manage the Commission and its quarterly meetings

5. Coordinate with Commission to ascertain advice on any matter pertaining to public art, including:
a. preparing and presenting the Public Art Program Update to City Council; b. artist selection juries and process;
c. purchase of artworks;
d. commission and placement of artworks; and
e. public art programming;

6. Maintain a current written record of all works of art included in the Public Art Collection.

7. Ensure various City departments are following the City’s Public Art Policy.

8. Assist with periodically surveying public art to determine if works require maintenance or other attention. Oversee trained art conservators for ongoing artwork maintenance as needed.

City Manager and City Staff
City staff members should look for opportunities to include public art in capital improvement projects (CIP) throughout the City, particularly in locations identified as priorities in this plan.

Pursuant to MMC V-20-610.a.3, the City Manager shall annually notify the Arts Commission of which projects are eligible construction projects within the approved categories for the 1.5% formula application, as well as expenditures for the prior year subject to the 1.5% funding.

Collection Management
The City of Milpitas acquires artworks by purchase, commission, and donation. Processes for these acquisitions are dictated by the Acquisition and Donation sections found in this section.

Artwork acquired through these processes are considered to have been accessioned into the City’s Public Art Collection. They must be cared for in accordance with the policies and Procedure for Maintenance and the Collection Management policies. Artwork in the City’s possession that were acquired outside of or before these policies may not be accessioned pieces of the Public Art Collection and thus may not be subject to the Collection Management policies. The Collection Management policies are intended to maintain the value of the City’s Public Art Collection and guard against the arbitrary disposal of any of its pieces.

Objectives
● Maintain a collection management program that results in a high-quality, City-owned Collection;
● Eliminate artwork that is unsafe, not repairable, or no longer meets the needs of the City of Milpitas;
● Care for loaned artworks with the same standards and policies extended to the City’s Public Art Collection;
● Respect the creative rights of artists; and
● Support an efficient workload for staff.

Donations
Requests to donate artwork to the City may be considered on a case-by-case basis. Pursuant to the City of Milpitas Donation Policy, the City Manager must pre-approve any publicized request(s) for donation, where the Arts Commission has established in advance, and publicized, a need, project, or location in which an art donation may be included. Requests for consideration shall be made to the Public Art Administrator and are ultimately approved by the City Council. The City has no obligation to accept a proposed Donation.

Donation Requirements
The City will consider donations on the following basis:
● The donation contributes to and enhances the City’s Collection; ● The donation meets a high standard of quality and is appropriate and meaningful to the community;
● The donation follows required City procedures, including the submission of a Donation Proposal and a Maintenance Plan. Donation Proposal requirements are included in these policies. The requirements for the Maintenance Plan can be found in Procedure for Maintenance policies below;
● The donation proposal includes a plan to fund and deliver ongoing operations and maintenance – or the resolution accepting the public art must identify how maintenance will be funded; and

● The donation proposal is reviewed and endorsed by the Commission and approved by the City of Milpitas.
● The Public Art donation policy is pursuant to the City of Milpitas donation policy.

Donation Conditions
The City will not accept a donation of artwork until all funds for development, fabrication, siting, and installation have been secured. The City will consider the following types of donation proposals for artworks for City-owned property:
● An already completed artwork; or
● A commissioned artwork by a specific artist or artists to be created especially for City-owned property.

Donation Proposal Procedures and Review Process
Formal requests to donate artwork to the City of Milpitas are made to the Public Art Administrator.

1. The donor shall complete an Art Donation Agreement Application (donor form) and submit the form to the Public Art Administrator.

2. Following a positive initial review by the Public Art Administrator, the City will contact the Arts Commission, which will evaluate the donation request to determine the appropriateness of the donation as measured by approval criteria and provide a written recommendation to the City Council.

3. The City will then determine whether the donation is in the City’s best interest and is consistent with the City’s goals and applicable City laws, policies, Ordinances, and Resolutions.

4. The City will notify the donor in writing, identifying final conditions if approval is granted.

Criteria for Evaluation of Artwork Donation Proposals
The Arts Commission shall review Artwork Donation Proposals using the following criteria:

1. City-owned Property – Donated public artwork must be suitable for public display on City-owned or City-managed property;

2. Relevance and Site Context – Works of art must be appropriate for the proposed location and its surroundings and/or complement the architecture, topography, history, and social dynamic of the location in which it is placed;

3. Artist and Artwork Quality – The artist demonstrates the ability and potential to execute the proposed artwork based on previous artistic achievement and experience.

Duplication of work will also be considered. The artwork must enhance the City’s Collection;

4. Physical Durability – The artwork will be assessed for long term durability against theft, vandalism, and weather;

5. Public Safety and Liability – The artwork will be assessed for any public safety concerns, as well as for any potential liabilities for the City;

6. Sustainability – Consideration will be given to the environmental impact and sustainability of the proposed artwork, including its operations and maintenance requirements/costs; and

7. Legal – Proposed terms of donation, legal title, copyright authenticity, artist's right to reproduce, liability, and other issues as deemed appropriate will be considered.

8. Originality - Works of art should be an original design unless it is decided that the work will enhance and complement the character of the surrounding area.

9. Compliance with Sign Code - Proposed artwork should feature no copy, lettering, symbols, or any references directly promoting any product, business, or service unless such images are discreet and do not detract from the artwork. Sponsor and artist names may be incorporated in murals but should be discreet and not exceed 5% of the design.

10. Supporting Costs - The City's preference is for donors and lenders to provide financial support for public art projects. Donations and loans are an important tool for growing the public arts in Milpitas and they foster civic pride by providing people and businesses the opportunity to shape the public environment. Projects should identify funding sources. All requests for use of City funds for production, siting, installation or ongoing operations and maintenance of the work must be approved by City Council.

11. Equal Opportunity: Every effort shall be made to support the cultural diversity of the community and the artists in the City’s Public Art Collection.

12. Installation and Maintenance - Any applicant for public art should present a reasonable plan to install and remove (or preserve) the work. The maintenance plan agreed upon between the artist, business owner, and/or property owner should adequately make arrangements to preserve and, if necessary, restore the quality of work during its exhibition. Elements of a thorough maintenance plan would include:
a. Lifespan of artwork and prognosis of durability in consideration of that lifespan. b. Routine cleaning protocols, methods, cleaning agents, and frequency. c. Itemization of long-range considerations and care, highlighting maintenance and the anticipated need for periodic conservation treatment or repairs. d. Specifications of materials used in fabrication.
e. Guarantee against failures of workmanship over an agreed upon period of time. f. Assignment of manufacturers or fabricators warranties to the owner of the artwork.

Acceptance and Accession of the Artwork
City staff should refer to City of Milpitas Donation Policy, prior to finalizing the accession process, as proposed donations may require approval by a Department Head, the City Manager, or City Council acceptance. If the proposal is accepted by the City of Milpitas, a formal agreement will be negotiated outlining the responsibilities of each party (the City, the donor(s), the artist, and outside contractors, where applicable).

The agreement will address project funding, insurance, siting, installation, operations and maintenance, project supervision, vandalism, the right of removal or transfer, public safety, and other issues as necessary.

The City of Milpitas will be the owner of the artwork and reserves the right to remove or alter the work to ensure public safety or because of any other City concerns. The City upholds copyright law and the Visual Artists Rights Act of 1990 (17 U.S.C. §§106A and 113(d)) and the California

Art Preservation Act (Cal. Civil Code §§ 987 and 989). Any changes will be made in consultation with the artist and donor(s) when possible, or notification will be provided.

The completed and installed artwork will be accessioned and added to the City’s inventory list and master database with all accompanying documentation. The Acknowledgement of the Donation will be based on the appraised value of the artwork and pursuant to the City of Milpitas Donation Policy, section 4.2.

Removal, Relocation, or Deaccession of Donated Artwork
Once the City accepts a gift, the City shall be the sole owner of the donated item and will have the right, in its sole and absolute discretion, to deaccession any donated item without providing notice to or obtaining the donor’s consent. In accepting a donation of artwork, the City of Milpitas will not be bound by any agreement with the donor that restricts the City’s ability to act in the best interest of the City of Milpitas. Nothing in the acceptance of a donation of artwork shall prevent the City from approving subsequent removal, relocation, or deaccessioning of such donations if it serves the City’s best interest to do so. The City will deaccession and dispose of works of art in its Collection in accordance with the Collection Management policies.

Art on Loan or Temporary Display on City-owned Property Art on loan, or art on temporary display on City-owned property, must meet the Donation Requirements above, follow the Donation Proposal Procedures 1-11 above, and be reviewed through the Donation Proposal Review Process. Art on loan or art on temporary display on City-owned property must not be accessioned or added to the City’s inventory list and master database. The City shall determine whether an expenditure of City funds, either a direct outlay of City funds or the use of City sources and materials, is associated with or required by acceptance of the loan prior to acceptance. The City may accept loaned public art from organizations and residents outside of the City.

All incoming loans should be documented and monitored in accordance with the same detailed procedures the government objects in Milpitas’s Public Art Collection. Loans must be documented by written loan agreements between the lender and the City, which should be signed by the lender prior to delivery and/or installation of the work to the City.

Upon City approval of a loaned artwork, the lender must sign an Art Loan Agreement with the City. The agreement should include:
● Term of Loans
○ Loan agreements shall be for a minimum of six months and a maximum of two years, with a provision for up to one year extension with written approval from the lender and the City. When determining the duration of a loan and its duration for display, Lenders and the City should consider an object’s material conditions, display location, and display context.

○ At the end of the term of loan, the lender will be granted up to six additional weeks for the removal of the artwork from the site on which it resides. ● Costs
○ The lender will be responsible for all costs associated with the loaned artwork, including but not limited to costs of transportation, installation, maintenance, removal, and repair (if needed).
○ The City will provide site maintenance as well as assistance with installation and removal, under the supervision of the lender or lender’s representative.

The City shall not be held responsible for any damage to the artwork while it is on loan.
● Installation Requirements
● Insurance
○ The City will not assume responsibility for damage or theft of artwork that is on display in accordance with this policy.
○ The lender will acknowledge that a risk of damage, loss, vandalism, or theft is inherent in a public display.
○ The lender must furnish satisfactory evidence of liability insurance by submitting a Certificate of Insurance, Additional Insured Endorsement listing the City, and Waiver of Subrogation. With approval from City Administration, the liability insurance requirement can be waived if the lender signed an Art Loan Release of Liability form.
● Maintenance Terms
○ Any requirements for routine inspections, and procedures for documenting and reporting any damage
○ The Loaned Public Art and surrounding site shall be kept in a clean and orderly condition and in accordance with Collection Management policies and the terms and conditions of the agreement, if one exists, between the lender and the City.
○ The lender or his or her designated representative will be utilized to make recommendations regarding the care and maintenance of the work of art when deemed appropriate by the City. A visual arts specialist or art conservator should be consulted if the artist or designated representative is not available to advise on the necessary care requirements. ○ The Recreation and Community Services Department shall be responsible for carrying out the lender’s advice on such care requirements and for determining such requirements when the artist/donor is unavailable. ○ Prior to accepting the Loaned Public Art, the lender will provide the City with a condition inspection report to be confirmed by the City. ○ Vandalism or other damage to the Loaned Public Art shall be reported to the Milpitas Police Department and/or the Recreation and Community Services Department.
○ The lender shall pay the cost of maintaining the Loaned Public Art, unless otherwise provided in the written agreement between the lender and the City. ● Removal

○ Lenders are required to remove Loaned Public Art by the agreed termination date. The City does not accept responsibility for Loaned Public Art not removed within the designated time frame. Any piece of art that is not removed by the deadline shall be treated as abandoned property ○ Loaned Public Art may be removed from City property in accordance with the Deaccession section of this policy.

Collection Maintenance
The City of Milpitas will administer the maintenance of the City’s Collection with advice from the Public Art Administrator and other outside partners through regular evaluation and planning for the care of the existing Collection. This section addresses:
● Accessioning and inventorying the City’s Collection of public art; ● Conducting a biennial Survey and Condition Assessments of all work in the Collection; ● Preparing a biennial Public Art Maintenance Plan; and ● Overseeing routine maintenance and special conservation treatment of the City’s Collection.

Every five years, the City of Milpitas will assess the condition of all public art with a qualified professional conservator and develop a prioritized list of works in need of conservation or maintenance. This list will be the basis of the Public Art Maintenance Plan. All artwork maintenance, specialized repair, routine care, and/or preventative treatments will be funded by the Public Art Fund.

Maintenance Guidelines for Acquiring New Works
Maintenance Plan
As described in the Acquisition policy, all acquired artworks must have a maintenance plan developed. The Maintenance Plan will be used to:
● Advise the Commission, appropriate City staff, and others who must review and approve design proposals or accept or decline donated artwork; ● Troubleshoot the production of construction drawings, the fabrication of the artwork, and the preparation of the site;
● Follow-up on the artist’s recommendations; and
● Refer to during the post-fabrication/installation inspection to prepare a final report and a punch-list to complete the project.

The City of Milpitas, professional conservators, and artists will strive to address the recommendations in the Maintenance Plan without unduly interfering with the aesthetic intent of the proposed public art.

Post Fabrication/Installation Inspection for Commissioned Artworks.

The Post-Fabrication/Installation Inspection conducted by City staff will be based upon and follow-up on the Maintenance Plan that was developed during the design phase. It will include the following:
● Ensure that recommendations made in the Maintenance Plan and during fabrication were followed;
● Confirm that the artwork is executed as proposed and agreed upon; ● Confirm that there are no missing or incomplete elements; ● Establish that materials quality and stability are acceptable; ● Establish that fabrication quality and stability are acceptable; ● Confirm that installation is stable and secure;
● Confirm that stainless steel is fully and properly “passivated”; ● Confirm that, if required, protective coatings have been applied; ● Ensure that warranties for electronic and other media are submitted as necessary;
● Identify any remaining vulnerabilities;
● Confirm no new damage resulting from installation process; ● Ensure that the maintenance and operations plan is accurate; amend as needed; and
● Confirm that the plaque/public notice meets program policies and is properly installed.

Deaccession
Removal from Public Display
Requests to deaccession artwork to the City may be considered on a case-by-case basis.

Requests for consideration shall be made through the Public Art Administrator to the Commission, based on the deaccession criteria below. The Director of the Recreation and Community Services Department shall have the discretion to determine whether a relocation of art is deemed significant or non-significant based on City policy and legal requirements and subject to the approval of the City Manager or their designee.

If the artwork is removed from public display, and the removal is not an emergency removal, then the City of Milpitas may consider the following options for deaccession:
● Relocation: If the Commission recommends that an artwork must be removed from its original site, and if its condition is such that it can be re-installed, the Commission will attempt to identify another appropriate site. If the artwork was designed for a specific site, the Commission will attempt to relocate the work to a new site consistent with the artist’s intention. If possible, the artist’s assistance will be requested to help make this determination. The City may, as necessary or appropriate, transfer City-owned public art from one public site to another, transfer public art to storage, or make a temporary loan of public art to another agency or organization.

● Store artwork until a new site has been identified or the City decides to deaccession the artwork.
● Sell or trade the artwork after deaccession.

If an artwork’s Agreement specifies terms of deaccession, then the City shall dispose of the work accordingly. Once deaccessioned from the City’s collection, a work may not be installed on City property.

Provision for Emergency Removal
In the event that the structural integrity or condition of an artwork is such that the artwork presents an imminent threat to public safety, the City Manager may authorize immediate removal without the artist’s consent, and have the artwork placed in temporary storage. If the Artist’s agreement with the City has not been waived under the Visual Artists Rights Act of 1990 (17 U.S.C. §§106A and 113(d)) and the California Art Preservation Act (Cal. Civil Code §§ 987 and 989), then the City must notify the artist of this action within 30 days. The City will then consider options for repair, reinstallation, maintenance provisions or deaccessioning. The City is not obligated to repair, reinstall, and/or replace temporary artworks (including but not limited to utility box wraps, murals, etc.) that have been removed either as a result of the Provision for Emergency Removal, or due to inadvertent damage or destruction.

In the event that the artwork cannot be removed without being altered, modified, or destroyed, and if the Artist’s agreement with the City has not been waived under the Visual Artists Rights Act of 1990 (17 U.S.C §§106A and 113(d)) and the California Art Preservation Act (Cal. Civil Code §§ 987 and 989), the City must attempt to gain written permission before proceeding. In the event that this cannot be accomplished before action is required in order to protect the public health and safety, the City shall proceed according to the advice of the City Attorney.

Criteria for Deaccession
The following may be grounds for the City to deaccession public art from City-owned or controlled property, for one or more of the following reasons:

1. An artwork is not, or is only rarely, on display because of lack of a suitable site.

2. The condition or security of the artwork cannot be reasonably guaranteed.

3. The artwork has been damaged or has deteriorated and repair is impractical or unfeasible.

4. The physical structure of the artwork endangers public safety.

5. The public art was stolen from its location and cannot be retrieved.

6. In the case of site specific artwork, the artwork’s integrity or relationship to the site is altered because of significant changes in the use, character, or design of the site

7. The artwork has been determined to be incompatible within the context of the collection.

8. The City of Milpitas wishes to replace the artwork with work of more significance by the same artist.

9. Maintenance costs are higher than anticipated

10. Faults of design or workmanship make repair or remedy impractical or unfeasible.

11. The City of Milpitas has approved necessary site alterations

12. Written request from the artist or donor.

13. Significant, adverse public reaction has continued unabated over an extended period of time.

14. Over time, the public has widely publicly associated the artwork with racism, sexism, homophobia, xenophobia, acts of assault or violence, or other offensive themes.

15. The City Council has determined that it is in the best interest of the City to remove the public art.

Deaccession Application Process
Preliminary Request
Permanent artworks must be in place for at least five years before deaccession or relocation requests will be considered unless matters of public safety or emergency removal provisions necessitate the removal. Deaccession or relocation requests may be submitted by the public.

Deaccession and Removal Form
Applicants will be required to submit a written request to the Public Art Administrator City staff, or the appropriate for consideration of deaccession or removal of artwork.

Deaccession Application Review Process
In consultation with the Commission, the Public Art Administrator will review requests and decide on either engaging in the process for deaccession review, or work with the City Staff and the Commission to determine appropriate relocation.

Public Meeting
The City may hold a public meeting to gather community feedback on a proposed deaccession or removal, unless the removal is an emergency. The City may also decide to hold additional public meetings or gather community input through other methods. The City may seek additional information regarding the work from the artists, galleries, curators, appraisers, or other professionals before making a recommendation.

Artist Involvement
If deaccession or removal is recommended, the artist (if available) will be contacted and invited to provide input to the City. The artist’s contract and other agreements or pertinent documents will be reviewed and sent to the City Attorney’s Office for final approval.

Recommendation
The Public Art Administrator will prepare a report and consult with the City Attorney, as necessary. City staff’s recommendation may include dismissing the request and/or modifying, relocating, selling, donating, disposing, or storing the artwork.

The Public Art Administrator will provide all relevant correspondence including, but not limited to:

1. Artist’s Name, biographical information, samples of past artwork, and resume.

2. A written description and images of the Artwork.

3. Artist’s Statement about the Artwork named in Deaccession or Relocation Request (if possible)

4. A description of the selection process and all related costs that was implemented at the time the Artwork was selected.

5. A formal appraisal of the Artwork (if possible)

6. Information regarding the origin, history, and past ownership of the Artwork

7. Information about the condition of the Artwork and the estimated cost of its conservation.

8. Information and images of the Artwork’s site

9. Any information gained from the public meeting held about the deaccession and removal of the work.

10. Feedback from the Recreation and Community Services Department responsible for operating and maintaining the Artwork.

11. Detailed budget for all aspects of conservation, maintenance, repair, installation, operation, insurance, storage, and City Staff support.

12. The Artist’s contract with the City.

City staff can recommend one or more of the following methods for an artwork’s deaccession:

1. Sale or Exchange - sale shall comply with the State of California and City of Milpitas laws and policies governing the sale of municipal property. a. Artist, or estate of the artist, will be given the first option to purchase or exchange the artwork(s).
b. Sale may be through auction, gallery resale, direct bidding by individuals, or other forms of sale in compliance with the California of California and City of Milpitas law and policies governing surplus property.
c. Exchange may be through an artist, gallery, museum or other institution for one or more artwork(s) of comparable value by the same artist. d. No works of art shall be traded or given to Commission members or City of Milpitas staff.
e. Proceeds from the sale of artwork shall be placed in the Public Art Fund. Any pre-existing contractual agreements between the artist and the City regarding resale shall be honored. An exception to these provisions may be required if the artwork was originally purchased with funds that carried with them some restriction, for example, bond funds for street and sidewalk improvements, in which case the proceeds shall be placed in an account designated for art allowed under similar restriction(s).

2. Destruction of Artwork – if artwork is deteriorated or damaged beyond repair or deemed of negligible value.

3. If the City of Milpitas is unable to dispose of the artwork in the manner outlined above, the Public Art Administrator may recommend the donation of the artwork to a non-profit organization or another method.

Costs

If deaccession or relocation accommodates the applicant’s interests or project, they may be required to cover the deaccession or relocation at no cost to the City.

Conflict Of Interest
No works of art shall be given or otherwise transferred publicly or privately to officers, directors, or employees or staff of the City of Milpitas or their immediate families or representatives of the City of Milpitas.

Compliance With Applicable Policies And Regulations
Deaccession and relocation of artwork will be done in a manner that complies with all other applicable City of Milpitas, State of California, and federal procedures, policies, and regulations.

Existing Public Art Pieces At Time Of Policy Adoption
Existing public art pieces on City-owned property should be evaluated using the accession criteria to ensure that it is appropriate for the City to continue owning and maintaining the artwork. If it does not meet the accession criteria, then the piece will not be accessioned into the Milpitas Public Art Collection.

Collection Management Best Practices
Integrity of Artworks
The Milpitas Public Art Program will seek to ensure the ongoing integrity of the artwork and the sites for which they were created, to the greatest extent feasible, in accordance with the artist’s original intentions, and consistent with the rights afforded by the Visual Artists Rights Act of 1990 (17 U.S.C. §§106A and 113(d)) and the California Art Preservation Act (Cal. Civil Code §§ 987 and 989).

Access to Artworks
The City will seek to assure continuing public access to artworks in its Collection and/or artwork that has been funded by public funds. However, the City may limit availability due to circumstances such as funding, public safety, display space, and deaccession processes.

Life Spans
An artwork’s life span is either the amount of time its materiality will allow it to be displayed (either for artwork safety or artwork integrity reasons), or the object’s display period, as determined by a contract between the City and the artist, whichever is shorter. Life spans assigned to the work during the commissioning process will be considered as part of requests for deaccession or removal. For artworks that have not been assigned a life span, the Public Art Administrator may engage experts to assist in assigning the artwork a life span, based on the life expectancy of the artwork’s materials and fabrication methods, and/or the programming priorities of the Commission.
■ Temporary: less than one year

■ Short Term: 1 -10 years
■ Medium-Term 11 - 25 years
■ Long-Term 26+ years

Public Art Program Update
The Public Art Program Update is a document that outlines in-process projects, and projects will be initiated in the coming fiscal year(s). The Program Update is one of the most crucial elements of the Public Art Program. It creates a roadmap and allows for the input of community members, elected officials, and others who care deeply about public art in Milpitas.

The Public Art Administrator will develop the Update in consultation with staff and the Commission and submit it as part of the annual operation and/or CIP budget for review and approval. The following steps will be taken to develop the Public Art Program Update:

1. Work with Recreation and Community Services to determine the availability of funds for the upcoming year(s).

2. Identify projects to be paid for by identified funding, including acquisition and maintenance.

3. Identify Creative Amenity or Community Art projects that coincide with City programming and events throughout the year.

4. Develop a draft Public Art Program Update that will include locations, goals, and budgets for public art projects and programs for staff review.

5. Present the Update as part of the City budget approval.

6. Integrate feedback from City Council to determine the final Program Update.

7. Report on the use of funds collected to support the Public Art Program to and increase the amount of art in the City that is available to the public.

Use of Funds
Funding for the Milpitas Public Art Program may come from:
● the Public Art Fund, pursuant to MMC V-20-610 and MMC XI-10-14.04; ● the City’s Capital Improvement Budget;
● grants and/or contributions from private entities;
● other public agencies;
● philanthropic sources; or
● through other sources as deemed appropriate by the City.

Uses for Funds
Pursuant to [CODE], expenditures of the Public Art Fund shall include, but are not limited to:
● The cost of public art and its installation, which includes the hiring of artists to develop and design concepts for the selection, acquisition, purchase, commissioning, placement, installation, necessary site preparation, artist travel, exhibition and/or display of artwork; ● Waterworks, landscaping, lighting, plaques and other objects, which may be an integral part of the public artwork;

● Frames, mats, pedestals and other objects necessary for the presentation of the public artwork;
● Walls, pools, landscaping and other architectural or landscape architectural elements necessary for the proper aesthetic and structural placement of the public artwork; ● Maintenance and repair of public artwork funded through the Public Art Fund; ● Administration of the City's Public Art Program, including staff support and related expenses, transportation of Public Art, site preparation, permit or certificate fees, business and legal costs directly associated with specific Public Art projects, master planning, installation and maintenance of Public Art, curatorial services, documentation, publicity and community education. Administrative costs shall also include staff time, direct costs and administrative overhead.
● Hiring of consultants on an as needed basis to advise and assist the Arts Commission in such areas as professional appraisal of Public Artwork; packing and shipping of public artwork; conservation and maintenance; collection documentation; installation design; presentation assistance; contract negotiation; artist selection; program monitoring; on-site monitoring of public artwork installation.
● Reproductions of original works of art.

The public art funds may not be spent for:
● Art objects, which are mass-produced of standard design such as playground equipment or fountains, with the exception of limited editions controlled by the artist. ● Decorative, ornamental, or functional elements which are designed by a project’s architect or other designer as opposed to a commissioned artist ● Routine maintenance, conservation, repair, or restoration, exceeding more than 10% of the annual budget.
● Purchase of existing works of art outside of the selection process. ● Landscape architecture and landscape gardening that are designed by a landscape architect or a landscape designer
● Creative Amenities or Community Art projects.
● Professional graphics, unless designed or executed by an artist or used in the development of collateral material.

Uses for Funds in Mural Projects
The installation of a mural may necessitate additional expenses beyond the artist fee and materials. Additional fundable expenses include but are not limited to:
● Artist(s) fees for design and execution of murals.
● Rental or purchase of painting equipment or the purchase of painting supplies. ● Preparation of the mural surface including repairs and priming. ● Rental of barricades and other equipment required of street or alley closures. ● Lighting and electrical equipment.
● Other expenses that are pre-approved by the City Manager or their designee, and the City of Milpitas during the annual budget process.

Public Art Acquisition
These policies establish the practices for acquiring artworks. The procedure creates a thorough and transparent process for acquiring artwork and favors open-ended selection processes to ensure artistic excellence in the City’s Collection.

Selecting the artist is one of the most critical steps in commissioning public art. An open, equitable, competitive process that inspires the artist and engages the community can be an enriching experience and lead to more creative and exciting public art. The Public Art Administrator will work with the Commission to determine the appropriate method for commissioning new artwork for each Public Art Program project.

Goals of the Selection Process
● To satisfy the goals of the project site through an appropriate artist selection. ● To further the mission and goals of the Public Art Program. ● To select an artist or artists whose existing public artworks or past collaborative design efforts have demonstrated a level of quality and integrity. ● To identify an approach to public art suitable to the goals and demands of the particular project.
● To select an artist or artists who will best respond to the distinctive characteristics of the site and the community it serves.
● To select an artist or artists who can work successfully as members of an overall project design team.
● To ensure that the selection process represents and considers the interests of all parties concerned, including the public.
● To ensure, on average, the demographics of the artists and selection committees are reflective of Milpitas’s population, on average.

Purchasing Procedures
City staff should refer to the City of Milpitas Purchasing Policy, prior to confirming an acquisition method and finalizing the acquisition process.

Artist Selection Methods for Acquiring Existing Artwork Competitions
In competitions, the City may put out an open call to artists for a possible inclusion in an exhibition at a predetermined site. The competition, which may or may not take the form of a temporary exhibit may feature existing artworks. Each selected artist may receive a stipend and the City may purchase one or more pieces of artwork at the conclusion of the exhibit to be placed in public locations around Milpitas. All calls for artists will be advertised on the City of Milpitas’s website, appropriate procurement site.

Direct Selection
On occasion, artists may be recommended directly by the Artist Selection Committee. Direct selection may be useful on projects where an urgent timeline, low budget, or where precise project requirements exist.This list of artists could come from a pre-qualified list. Approval for this method should be in accordance with the City of Milpitas’s purchasing procedures. City staff should refer to the City of Milpitas Purchasing Policy, prior to finalizing the acquisition process.

Direct Purchase
Some projects require the purchase of a specific artwork due to the exacting nature of the project or a minimal project timeline. In this case, the work must be “one-of-a-kind” and not mass-produced or off the shelf. This list of artists could come from a pre-qualified list. Approval for this method should be in accordance with the City of Milpitas’s purchasing procedures. City staff should refer to the City of Milpitas Purchasing Policy, prior to finalizing the acquisition process.

Artist Selection Methods for Commissioning New Artwork
Open Competition
In an Open Competition, any artist may submit their qualifications or proposal, subject to any requirements established by the Artist Selection Committee. The Requests for Qualifications (RFQs) or Requests for Proposals (RFPs) should be sufficiently detailed to permit artists to determine whether their art is appropriate for consideration. Open Competition allows for the broadest range of possibilities for a site and brings in new, otherwise unknown, and emerging artists.

Limited or Invitational Competition
In a Limited Competition or Invitational, several pre-selected artists are invited by the Artist Selection Committee to submit their qualifications and/or proposals. This method may be appropriate when the City is looking for a small group of experienced artists, a limited time frame, or if the project requirements are so specialized that only a limited number of already identified artists would be eligible.This list of artists could come from a pre-qualified list.

Direct Selection
On occasion, artists may be recommended by the Artist Selection Committee. Direct selection may be useful on projects where an urgent timeline, low budget, or where precise project requirements exist.This list of artists could come from a pre-qualified list.

Direct Purchase
Some projects require the purchase of a specific artwork due to the exacting nature of the project or a minimal project timeline. In this case, the work must be “one-of-a-kind” and not mass-produced or off the shelf. This list of artists could come from a pre-qualified list.

Artist Services Procurement
Design Team Member
In some instances, the City may use a targeted process to select an artist as part of a larger project design team. Language would be added to the project Request for

Qualifications/Request for Proposals specifying that all teams responding to the RFQ/RFP must include a professional artist from a pre-qualified list as described in the section below. Given the nature of the project, a design team responding to an RFQ/RFP may be asked to identify an artist as part of the team based upon criteria established by the City in the RFQ/RFP. In this case, the Public Art Administrator will represent the Program as part of the selection committee for the design team.

Pre-Qualified Artist Lists
The City may decide to develop a pre-qualified pool of artists from which it can choose artists for Limited Competition, Direct Selection, and Direct Purchase. This pool would be developed based on a comprehensive review of artist qualifications. This list could be updated annually or bi-annually, depending on the frequency of new projects. Inclusion on this list does not guarantee that artists will be selected for a commissioned project.

Artist Selection Process for Artwork Acquisition.

Once an Artist Selection method is determined, a selection process will be established. A jury of recognized experts and community members will make recommendations for selected artists to create site-specific artwork or will make recommendations for artwork chosen to be exhibited.

If the budget for a single piece of artwork is $50,000.01 or more, a selection panel must be formed. If the budget for a single piece of artwork is $50,000.00 or less, then the Commission may act as the selection committee.

Artist Selection Process and Responsibilities
The artist selection process will interpret and review the artist’s proposals based on the selection criteria. The goals of the selection process are as follows:
● To satisfy the goals of a specific project or site through an appropriate artist selection. ● To further the mission and goals of the Public Art Program. ● To select an artist or artists whose existing public artworks or past collaborative design efforts have demonstrated a level of quality and integrity. ● To identify an approach to public art suitable to the goals and demands of the particular project.
● To select an artist or artists who will best respond to the distinctive characteristics of the site and the community it serves.
● To select an artist or artists who can work successfully as members of an overall project design team.
● To ensure that the selection process represents and considers the interests of all parties concerned, including the public, the arts community, and the City department(s) involved Artist Selection Committee
Membership of Selection Committees

Membership will be recommended by the Public Art Administrator. The members of the selection panel (panelists) will be representative of the community demographic and will consist of at least five (5) but no more than nine (9) members from the list below:
● Members of the Arts Commission (3 or less to avoid quorum) ● Artist or arts administrator;
● Design professionals
● City of Milpitas project manager who may appoint the project architect or project landscape architect in their stead; and
● A member of the project steering committee if one has been appointed ● Community or neighborhood representative
Artist Selection Committee Conflict of Interest
Artist Selection Committee members will declare any conflicts of interest for all projects and artwork under consideration at the beginning of their meetings. A conflict of interest exists if a committee member, an organization the committee member is associated with as a staff or board member, or a committee member’s family member can gain financially from the project under consideration by the Artist Selection Committee. In order to promote public confidence in this process, a committee member may also declare a conflict if they think there may be a perception that they have a conflict. If a committee member has a conflict, he/she must not participate in the Artist Selection Committee’s discussion or decision regarding the project. They must also refrain from discussion about the project and from influencing fellow committee members.

Artist Election Committee Procedures
During an artist selection process, Artist Selection Committee members will not submit applications for the placement of their own artwork and/or projects. City Staff and Commission members can invite artists to participate but must refrain from giving advice to applicants or answering their questions and direct such questions to the Public Art Administrator during the selection process. The Commission shall seek public comment for all pieces of public art commissioned or purchased for over $50,000.01. An opportunity for public comment must be given before a formal vote. A formal vote recommending the selection to the City of Milpitas City Council must be recorded in keeping with the City of Milpitas public record requirements.

Project Implementation Process for Site-Specific Artwork.

Upon the decision of the Artist Selection Committee, and with the assistance of the City Attorney’s Office, the Public Art Administrator will prepare a contract that includes the scope of work, fee, schedule, and relevant terms and conditions to be approved by the City and artist.

The City will follow the process for contracting required by law. For some projects, the contract with the artist may be phased to include two scopes of work with separate pay schedules and deliverables. The first phase would include all design documentation, including final design, stamped engineering drawings, installation details, and a revised fabrication budget and timeline. The second phase would include all costs related to fabrication and installation.

The Public Art Administrator will ensure all documents are signed and insurance coverage secured before issuing a notice to proceed and will be responsible for coordinating the artist’s work to ensure the successful integration of the artwork into the project. The Public Art Administrator will organize a meeting with all integral staff to review roles, responsibilities, and schedules.

If specified in the contract, the artist will develop design development drawings for review and approval from the City before fabrication. The Public Art Administrator will schedule meetings with the appropriate offices to review and approve the plans.

If the artist proposes any significant design changes, the Public Art Administrator will secure the recommendation for approval from the Commission and the appropriate departments of the City before approving said changes in writing, per the terms and conditions of the contract.

If the parties are unable to reach mutually beneficial contract terms, then the contract process will be terminated.

The Public Art Administrator will be responsible for overseeing the installation of the artwork.

The Public Art Administrator will ensure that all the necessary requirements have been completed before interim and final invoice payments to the artist.

Maintenance Plan
Understanding maintenance and care of public art begins before an artwork is created. During the design phase or when a donation is initiated, the City, artist, or donor will review and analyze their design proposal and advise on maintenance and operations of the artwork. It is best practice and highly recommended that an art conservator is contracted to give a report on the proposed artwork.

On behalf of the City, the artist, donor, or the appropriate party will submit a Maintenance Plan to the City of Milpitas, who will review and then catalog any tasks associated with maintenance of the artwork.

The Maintenance Plan will enable the City to:
● Evaluate the quality and sustainability of the proposed or existing public artwork; ● Establish maintenance requirements, assign schedules, and identify potential costs; and ● Determine if the City of Milpitas should accept or decline the design proposal and/or public artwork.

To produce the Maintenance Plan, the artist should examine and render an opinion on the following:
● Durability;
● Type and integrity of materials;
● Construction/fabrication technique;
● Internal supports, anchoring and joining, and footings;

● Landscaping;
● Vulnerable and delicate elements;
● Drainage of artwork;
● Potentially dangerous elements;
● Security;
● Location;
● Environment;
● Whether the design encourages/discourages interaction; and ● Effects of skateboarding, graffiti, and any other potentially damaging activities.

The Maintenance Plan will include:
● A record of the artist’s intentions for the artwork;
● Recommendations to mitigate potential problems discovered during the examination; ● Notes about how the artist would like the artwork to age; ● An itemization of long-range considerations and care, highlighting maintenance and the anticipated needs for periodic conservation treatment or repairs; and ● Identification of the lifespan of the artwork and a prognosis of its durability in consideration of that lifespan.

The artwork may also be identified as site-integrated, or part of the site and/or the architecture, as appropriate and will fall into the long-term lifespan category above.

Mural Program Policy
The City of Milpitas Mural Program seeks to promote mural activity reflective of the heritage, diversity, and aspirations of our community through engagement with muralists, property owners, community stakeholders and residents. Publicly-owned murals may occur on publicly-owned buildings or on privately-owned buildings where the property owner agrees to a mural easement allowing for the creation and maintenance of a publicly-owned mural on private property for a specific period of time. The Mural Program Policy is pursuant to [link policy?]. —--- End of policies —--

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Adopt a Resolution Appointing an Interim City Manager (Kelli Parmley, Human Resources Director, 408-586-3086)
Category: Leadership and Support Services
Meeting Date: 4/15/2025
Recommendation: (1) Adopt a resolution to appoint an Interim City Manager effective on approval and until a permanent City Manager is appointed, (2) Approve and authorize the Mayor to execute an employment agreement on behalf of the City, and (3) Authorize the Assistant City Manager or designee to take such other actions as necessary and appropriate to carry out the purpose of this appointment.

BACKGROUND:

The City of Milpitas is established as a Council-Manager form of government, which requires the City Council to appoint a City Manager or Chief Executive to handle the day-to-day operations and administration of the City. The departure of City Manager Ned Thomas, effective April 16, 2025, requires the City Council to take action to ensure an effective transition until a permanent City Manager can be appointed.

On February 11, 2025, the City Council convened a sub-committee of the Council comprised of Mayor Carmen Montano and Councilmember Evelyn Chua to guide the process of recruiting and hiring an Interim City Manager. In consultation with the City Attorney and Human Resource Director, the sub-committee retained the services for executive recruitment from a professional firm, WBCP, Inc., to facilitate the process. WBCP conducted a search to identify and preliminarily screen candidates. On April 1, interviews were conducted by the full City Council at a special meeting, convened in closed session. On April 1, the City Council provided direction and authority to the City Attorney to negotiate a contract for the Interim City Manager position with support provided by the Human Resource Director. On April 15, 2025, the Council will meet in closed session to complete their consideration of who to appoint as an Interim City Manager.

ANALYSIS:

On behalf of the City Council, staff is recommending the City receive the City Council final recommendation from the closed session meeting and appoint an Interim City Manager with the terms and conditions identified in the employment contract (Attachment 2). This appointment would be in effect upon approval by City Council and until an appointment of a permanent City Manager.

POLICY ALTERNATIVE(S):

Alternative 1: Do not adopt the resolution appointing an Interim City Manager.

Pros: None
Cons: This will create difficulty in the smooth transition of leadership and the City Council is obligated by the Municipal Code to appoint and/or authorize an officer of the City to perform the duties of the City Manager.

FISCAL IMPACT:

The fiscal impact for the Interim City Manager position is based on a contemplated six-months appointment and includes base salary, customary benefits as established in the City of Milpitas Unrepresented Handbook, and any additional economic benefits identified in the terms and conditions of the employment agreement. The table below demonstrates the estimated fiscal impact for FY 2024-25, approximately 2.5 months, and for FY 2025-26, approximately 3.5 months, for a total contemplated six-months assignment (132 workdays during the period). The Affordable Housing Community Fund is allocated 3% of total salaries and benefits, with the remainder allocated to the General Fund. FY 2024-25 costs will be funded through the vacancy savings of the

City Manager position as of April 17, 2025, with the shortfall funded with forecast Citywide vacancy savings in the 2024-25 fiscal year; those forecast Citywide vacancy savings are approximately $1.5 million as of the writing of this Agenda Report. The estimated expenditures for FY 2025-26 will be included in the FY 2025-26 Proposed Operating Budget and subject to City Council adoption and appropriation.

California Environmental Quality Act (CEQA):

Approval of the recommendation is not an activity defined as a “project” under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines 15061(b)(3) and 15378(b)(4) either because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment and/or because the action is financial and/or administrative and does not directly impact the environment.

RECOMMENDATION:
(a) Adopt a resolution to appoint an Interim City Manager effective on approval and until a permanent City Manager is appointed;
(b) Approve and authorize the Mayor to execute an employment agreement on behalf of the City; and (c) Authorize the Assistant City Manager or designee to take such other actions as necessary and appropriate to carry out the purpose of this appointment.

Attachment(s):

1. Resolution Appointing an Interim City Manager

2. Employment Agreement
Interim
City Manager
100 - General
Fund
216 - Affordable
Housing
Community Fund
Total (~2.5 Months) 100 - General Fund
216 - Affordable
Housing
Community Fund
Total (~3.5 Months) Total (6 Months)
Salary $ 74,940 $ 2,318 $ 77,258 $ 111,703 $ 3,455 $ 115,158 $ 192,415 Benefits 49,347 1,526 50,873 73,554 2,275 75,829 126,702 Total Use of Funds $ 124,287 $ 3,844 $ 128,131 $ 185,257 $ 5,730 $ 190,987 $ 319,117 City Manager
Vacancy Savings
100 - General
Fund
216 - Affordable
Housing
Community Fund
Total (~2.5 Months) 100 - General Fund
216 - Affordable
Housing
Community Fund
Total (~3.5 Months) Total (6 Months)
Salary $ 56,822 $ 1,757 $ 58,579 $ 84,697 $ 2,619 $ 87,316 $ 145,896 Benefits 44,576 1,379 45,955 66,443 2,055 68,498 114,453 Total $ 101,398 $ 3,136 $ 104,534 $ 151,140 $ 4,674 $ 155,814 $ 260,348 Citywide
Vacancy Savings 22,889 708 23,597 34,117 1,056 35,173 58,769 Total Source of Funds $ 124,287 $ 3,844 $ 128,131 $ 185,257 0 $ 5,730 $ 190,987 $ 319,117 Use of Funds
FY 2024-25 FY 2025-26 Proposed Operating Budget
FY 2024-25 FY 2025-26 Proposed Operating Budget
Source of Funds

RESOLUTION NO. XXXX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILPITAS AFFIRMING THE APPOINTMENT OF ________________ AS CITY MANAGER ON AN INTERIM BASIS AND APPROVING

SPECIFIED SALARY AND BENEFITS FOR THE POSITION
WHEREAS, the position of City Manager for the City of Milpitas needs to be filled on a temporary basis to prevent stoppage of public business until a permanent replacement is hired; and WHEREAS, the City Council desires to appoint ________________ as City Manager for the City on an interim basis; and
WHEREAS, ________________ has over __ years of public sector experience with an extensive history in leading and managing departments within public agencies and
WHEREAS, the annual salary to be paid to ________________ for performance of the City Manager position is $379,000.00 per year; and
WHEREAS, ________________ will also continue to receive all other benefits and incentive which Unrepresented Miscellaneous Exempt employees receive unless waived; and WHEREAS, ________________ will also receive benefits as specified in their Employment Agreement.

NOW, THEREFORE, the City Council of the City of Milpitas hereby finds, determines, and resolves as follows:

1. All facts set forth in the background section of this Resolution are true and correct.

2. The City Council hereby affirms its appointment of ________________ as City Manager on an interim and temporary basis effective the day following the last day of employment for the present City Manager, currently projected to be April 17, 2025.

3. The City Council hereby approves the salary and benefits specified in this Resolution to be provided to ________________ during their appointment as Interim City Manager.

4. The City Council hereby authorizes the Mayor to execute an employment agreement on behalf of the City in the form attached hereto as Exhibit A.

5. The City Council hereby authorizes the Assistant City Manager or designee to take such other actions as necessary and appropriate to carry out the purpose of this appointment, including updating pay and pay schedules as necessary.

PASSED AND ADOPTED this 15th day of April, 2025, by the following vote:

AYES: ()
NOES: (0) None
ABSENT: (0) None
ABSTAIN: (0) None
ATTEST: APPROVED:

Suzanne Guzzetta City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:

Christopher Creech, Acting City Attorney

EMPLOYMENT AGREEMENT
THIS AGREEMENT (“Agreement”) is between the City of Milpitas, a municipal corporation (“City” or “Employer”), and ________________ (“Employee”), collectively referred to as the “Parties” and individually as “Party.” It is effective on the day following the last day of employment for the present City Manager, currently projected to be April 17, 2025 (“the Effective Date”).

This Agreement is entered into on the basis of the following facts, among others:

A. The City desires to employ, on a temporary and interim basis, the qualified professional services of Employee as Interim City Manager of the City while it seeks a permanent replacement for its City Manager, as provided by the Milpitas Municipal Code. The Employee is intended to serve as Interim City Manager until the date when the next City Manager’s employment commences.

B. Following a professional recruitment, and after interviewing several Interim City Manager candidates, ________________ was selected by the City Council to serve as Interim City Manager. The Employee represents that they have the necessary and specialized experience, skills, and expertise required to serve as the City’s Interim City Manager and is willing and capable to immediately begin such an appointment for a temporary and interim period.

C. The City Council and Employee desire to establish a reasonable, professional and trustworthy temporary employment relationship, subject to the terms and conditions set forth in this Agreement pertaining to compensation and benefits, performance evaluations, and related matters.

BASED UPON THE FOREGOING, THE CITY AND EMPLOYEE AGREE AS FOLLOWS:

1. Employee Appointed.
(a) The City, by and through the Milpitas City Council, appoints and employs Employee as Interim City Manager, and Employee continues to accept the appointment and employment as of the Effective Date.

2. Duties of Employee.
(a) Employee shall perform the duties established for the City Manager by State law, the Milpitas Municipal Code, the City Manager job description, the directions of the City Council, or as otherwise provided by law, ordinance, or regulation. The provisions of the Municipal Code pertaining to the City Manager and the City Manager job description, as may be amended from time to time, are attached hereto as Exhibit A and are hereby made a part of this Agreement. Such duties shall include, but not be limited to:
(i) To see that all laws and ordinances of the City are duly enforced and that all franchises, permits, licenses and privileges granted by the City are faithfully performed and observed;
(ii) To control, order and give directions to all directors of departments and to subordinate officers and employees of the City under their jurisdiction through their department directors, and to transfer employees from one department to another;
(iii) To attend all meetings of the City Council unless excused there from by the City Council;
(iv) To recommend to the City Council for adoption such measures and ordinances as they deems necessary or expedient;
(v) To keep the City Council at all times fully advised as to the financial conditions and needs of the City;
(vi) After receiving feedback from the City Council, to prepare and submit to the City Council an annual recommended budget and to administer the adopted budget; (vii) To purchase or cause to be purchased all supplies for all of the departments or divisions of the City. No expenditures, except those for legal services, shall be submitted or recommended to the City Council except on report and approval of the City Manager;

(viii) To make investigation into the affairs of the City and any department or division thereof and any Contract or the proper performance of any obligation running to the City;
(ix) To oversee and direct the investigation of all complaints in relation to matters concerning the administration of the government of the City and in regard to the services maintained by public utilities in the City and to see that all franchises, permits and privileges granted by the City are faithfully observed; (x) To execute general supervision over all public buildings, public parks, streets and other public property which are under the control and jurisdiction of the City Council;
(xi) To devote their entire working time, thought and energy to the duties and interests of the City;
(xii) When acting in their official capacity as City Manager, respond to all media and community inquiries in alignment with the City Council's approved values, visions, and goals, and exclusively in the best interests of the City; (xiii) To make reports and initiate recommendations as may be desirable or as requested by the City Council; and
(xiv) To perform such other duties and exercise such other powers as may be delegated to them from time to time by ordinance, resolution or other action of the City Council.
(b) Full Energy and Skill. Employee shall faithfully, diligently, and to the best of Employee's abilities, perform all duties that may be required under this Agreement. Employee agrees that Employee has a duty of loyalty and a general fiduciary duty to the City. Employee shall devote the whole of Employee's working time, skill, experience, knowledge, ability, labor, energy, attention, and best effort exclusively to the City’s business and affairs. Prior to undertaking any secondary activities for which Employee receives compensation,

Employee shall disclose those activities to the Council. (c) No Conflict. Employee shall not engage in any employment, activity, consulting service, or other enterprise, for compensation or otherwise, which is actually or potentially in conflict with, inimical to, or which interferes with the performance of Employee’s duties.

Further, Employee shall not, during the term of this Agreement, individually, as a partner, joint venture, officer or shareholder, invest or participate in any business venture conducting business in the corporate limits of the City of Milpitas. (d) Outside Activities. Consistent with subdivision 2(b) above, the Employee’s primary employment is with the City. Any outside activities for which the Employee receives compensation from a third party shall be disclosed, in advance, to the City Council.

Employee is expected to take personal leave (i.e., vacation time) for any outside activities of this nature.

3. Hours of Work.

The Interim City Manager is an exempt employee, and is expected to engage in those hours of work that are necessary to fulfill the obligations of the City Manager’s position. The Interim City Manager does not have set hours of work as the Interim City Manager but is expected to be reasonably available to the City Council with support and coverage by the Assistant or Deputy City Manager at all times. It is recognized that the Interim City Manager must devote a great deal of time to the business of the City outside of the city’s customary office hours, and to that end the Interim City Manager’s schedule of work each day and week shall vary in accordance with the work required to be performed and in accordance with any specific direction provided by the City Council.

4. Term.

The term of this Agreement shall be from the Effective Date until a permanent City Manager assumes that office unless terminated earlier by either Party in accordance with the provisions set forth in Section 14, or unless extended by the City as authorized by Section 6. \ \ \

5. No Guarantee of Further Employment.

The City and Employee mutually agree that nothing contained in this Agreement, or this interim appointment, shall obligate or otherwise affect the selection of the permanent City Manager.

Employee may apply for the permanent City Manager position upon the same terms and conditions as offered to any other applicants. The City, including through the City Council, shall retain full and unfettered discretion in the selection of the permanent City Manager and the process for selection of the permanent City Manager. Outside of regularly applying for the permanent City Manager position, the Employee shall not interfere, influence, or otherwise attempt to gain competitive advantage over other applicants. If Employee is selected as the permanent City Manager, the Parties intend that a new employment agreement, separate and distinct from this Agreement, will be entered into between the Parties regarding that employment engagement.

6. Transition.

To ensure a smooth and seamless transition upon the appointment of a permanent City Manager, Employee shall perform their functions as Interim City Manager so that ongoing work and responsibilities can be transitioned if a different permanent City Manager is selected. The City at the City Council’s election shall have an option to continue to retain Employee’s services for an additional period of up to two (2) weeks beyond the initial term of this Agreement with the same salary and benefits in this Agreement. Employee shall not have the title nor authority and responsibilities of the City Manager position during this option period.

7. City Council Commitments.

The City Council shall abide by all provisions of the City’s Municipal Code regarding the administration of personnel issues, with a copy of the relevant provisions of the City’s Municipal Code, as may be amended from time to time, attached hereto as Exhibit A.

8. Performance Evaluation.

During this interim appointment, the Interim City Manager shall meet with all members of the City Council to obtain clear goals and objectives for a sixty (60) day performance evaluation. Based on

these meetings, the City Manager will distribute the proposed goals and objectives and present them for approval at the first available City Council meeting following completion of the referenced individual Councilmember meetings. Thereafter, the Employee will be subject to the City Council’s evaluation of performance after sixty (60) days of established goals and objectives. The Council can establish a performance evaluation at any such other time(s) selected by the City Council.

9. Compensation.
(a) Base Salary. Employee shall receive the annual Base Salary of Three Hundred Seventy Nine Thousand Dollars ($379,000), payable on a pro-rata basis in the same manner as all full time City employees, and subject to all applicable payroll taxes and withholdings. (b) COLA Adjustments/Compaction. This interim and temporary appointment does not qualify for a cost of living adjustment or other non-merit based salary increase provided to other miscellaneous unrepresented executive staff, unless determined by the City Council. (c) Reduction in Salary or Benefits. If the City reduces the Employee’s Base Salary, or any benefit described in Sections 10 to 13 of this Agreement, in a percentage that is greater than the average reduction of all miscellaneous unrepresented executive staff, such action shall constitute a termination of this Agreement without Cause under Section 14 of this Agreement.

10. Regular Benefits and Allowances.
(a) Employer agrees to provide and pay the City allowance for vision, dental and comprehensive medical health insurance for Employee and their dependents, if any, equal to that which is provided to all other full-time miscellaneous unrepresented executive staff of Employer. The City contribution toward health insurance shall be equal to that which is provided to all other miscellaneous unrepresented executive staff of Employer as specified in the applicable Unrepresented Employee Benefit Handbook (“Benefit Handbook”), dated July 1, 2024, or any amendment thereto or replacement thereof. Similarly, Employee shall receive short-term and long-term disability insurance coverage while this Agreement is in

force, subject to any contributions required of unrepresented miscellaneous unrepresented executive staff.

11. Deferred Compensation.
(a) Employee waives deferred compensation as provided for unrepresented employees in the Benefit Handbook.

12. Retirement Benefits.

Employer agrees to enroll Employee into the California Public Employees Retirement System (“CalPERS”) consistent with other City employees.

13. Additional Benefits and Allowances.

In addition to the benefits already specified in this Agreement, Employee shall receive the same benefits afforded to miscellaneous unrepresented executive staff, including and not limited to:
(a) Leaves
(i) Vacation. Employee shall accrue and be eligible to use vacation days in accordance with the City’s established vacation policy.
(ii) Sick Leave. Employee shall be entitled to use and accrue sick leave in accordance with established City policy.
(iii) Management Incentive Program (MIP). Employee shall accrue Management Incentive Paid Leave as provided for executive staff in the Benefits Handbook.

Employee shall additionally receive 40 hours of such Management Leave upon the Effective Date.
(iv) Delayed Use. Notwithstanding any other City policy, Employee may immediately use such Vacation, Sick, and MIP leave as accrued.
(b) Automobile. Employee shall receive a monthly vehicle allowance of five hundred fifty dollars ($550.00) per month, for automobile trips which shall be equal to that which is provided to all other miscellaneous unrepresented executive staff of Employer as specified in the applicable Benefits Handbook, or any amendment thereto or replacement thereof.

(c) Cellular Phone. Employee shall receive a City cell phone for use for City work purposes in compliance with the City’s Cellular Devices policy dated July 19, 2023, as may be amended.

14. Termination of Employment.
(a) No Property Interest/Cause Defined. Employee understands and agrees that Employee has no constitutionally-protected property or other interest in Employee’s employment as Interim City Manager. Employee understands and agrees that Employee works at the will and pleasure of the City Council, and that Employee may be terminated, or asked to resign, at any time, with or without Cause, by a majority vote of its members. Notice of termination shall be provided to the Interim City Manager in writing. As used in this Agreement, Cause shall only mean any of the following:
(i) Conviction of, or plea of guilty or nolo contendere to, any crime or offense (other than minor traffic violations or similar offenses) which is likely to have a material adverse impact on the City or on the Employee’s reputation; (ii) Proven and willful failure of the Employee to observe or perform any of their duties and obligations as established in this Agreement, if that failure continues for a period of thirty (30) business days from the date of their receipt of notice from the City Council specifying the acts or omissions deemed to amount to that failure; (iii) Conviction of any crime involving an “abuse of office or position,” as that term is defined in Government Code Section 53243.4;
(iv) Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body at a Brown Act compliant meeting; (v) Any grossly negligent action or inaction by Employee that materially and adversely: (a) impedes or disrupts the operations of City or its organizational units; (b) is detrimental to employees or public safety; or (c) violates the City’s properly established rules or procedures; and

(vi) Evidence of interference, influence, or other competitive advantage gained in contravention of Section 5.
(b) Notice Required Of Employee. Employee may voluntarily terminate employment at any time by giving not less than sixty (60) days written notice of a date certain for the conclusion of their employment. The date specified in such notice may not be modified without the written consent of the City Council.
(c) Communications Upon Termination. In the event the Employer terminates the Employee for any reason or no reason, the Employer and Employee agree to undertake reasonable efforts to issue a joint press release or statement, the content of which is mutually agreeable to the Employer and Employee. The joint press release or statement shall not contain any text or information that is reasonably considered to be disparaging to either party. For purposes of this subdivision only, “party” includes City Council members in office at the time of termination and miscellaneous unrepresented executive employees. If the parties are able to agree on a joint statement, either party may verbally repeat the substance of the joint press release or statement in response to any inquiry.

15. Statutory Requirements.
(a) This Agreement shall be deemed to incorporate by reference the provisions of Sections 53243 et seq. of the Government Code, as it may be amended or renumbered.

16. Payment of Expenses of Employment.

The City shall pay the following usual and customary employment expenses:
(a) The cost of any fidelity or other bonds required by law for the City Manager. (b) Subject to Section 14 and 15 of this Agreement, the cost to defend and indemnify Employee as required by the California Government Claims Act (Government Code §810 et seq.), or otherwise. City will determine, in its sole discretion, whether to compromise and settle any such claim or suit against Employee and the amount of any settlement or judgment rendered thereon.

(c) Subject to budget approval, the cost of attending conferences or other events (i.e. retirement dinners, out-of-town meetings, professional memberships and seminars, etc.) necessary for the proper discharge of Employee’s duties. The City will not reimburse Employee for any expenses related to membership in service clubs and will not encourage or require service club membership.

17. Miscellaneous.
(a) Notices. Notices given under this Agreement shall be in writing and shall be:
(i) served personally; or
(ii) sent by facsimile (provided a hard copy is mailed within one (1) business day); or (iii) delivered by first-class United States mail, certified, with postage prepaid and a return receipt requested; or
(iv) Sent by Federal Express, or some equivalent private overnight delivery service.

Notices shall be deemed received at the earlier of actual receipt or three (3) days following deposit in the United States mail, postage prepaid.

Notices shall be deemed received at the earlier of actual receipt or three (3) days following deposit in the United States mail, postage prepaid. Notices shall be directed to the addresses shown below, provided that a party may change such party's address for notice by giving written notice to the other party in accordance with this subsection.

CITY:

City of Milpitas Attn: Mayor
455 E. Calaveras Blvd.

Milpitas, CA 95035
EMPLOYEE:
________________
________________
________________
(b) Compliance with Government Code §§53243, 53243.1, & 53243.2. If Employee is convicted of a crime involving an abuse of the Employee’s office or position, all of the following shall apply:
(i) if Employee is provided with administrative leave pay pending an investigation, Employee shall be required to fully reimburse the City for such amounts paid;

(ii) if the City pays for the criminal legal defense of Employee (which would be in its sole discretion, as it is not generally required to pay for a criminal defense), Employee shall be required to fully reimburse City such amounts paid; and (iii) if this Agreement is terminated, any cash settlement related to the termination that Employee may receive from the City shall be fully reimbursed to the City or void if not yet paid to Employee.
(iv) For this subsection, “abuse of office or position” means either (1) an abuse of public authority, including waste, fraud, and violation of the law under color of authority, or (2) a crime against public justice, including but not limited to a crime described in Title 7 (commencing with Section 92) of Part 1 of the Penal Code. (c) Entire Agreement/Amendment. This Agreement constitutes the entire understanding and agreement between the parties as to those matters contained in it, and supersedes any and all prior or contemporaneous agreements, representations and understandings of the parties. This Agreement may be amended at any time by mutual agreement of the parties, but any such amendment must be in writing, dated, and signed by the parties and attached hereto. (d) Severability. In the event any portion of this Agreement is declared void, such portion shall be severed from this Agreement and the remaining provisions shall remain in effect, unless the result of that severability would be to substantially alter this Agreement or the obligations of the parties, in which case this Agreement shall be immediately terminated. (e) Waiver. Any failure of a party to insist upon strict compliance with any term, undertaking, or condition of this Agreement shall not be deemed to be a waiver of such term, undertaking, or condition. To be effective, a waiver must be in writing, signed and dated by the parties. (f) Representation by Counsel. The parties acknowledge and agree that they were, or had the opportunity to be, represented individually by legal counsel with respect to the matters that are the subject of this Agreement and that they are fully advised with respect to their respective rights and obligations resulting from signing this Agreement.

(g) Neutral Interpretation. The Parties agree that the terms of this Agreement resulted from arm’s length negotiation between them and is not a contract of adhesion. This Agreement will be interpreted neutrally as if both Parties jointly drafted and prepared all provisions and will not be construed in favor or against either Party by reason of actual authorship. (h) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Employee and City agree that venue for any dispute shall be in Santa Clara County, California.
(i) Section Headings. The headings on each of the sections and subsections of this Agreement are for the convenience of the parties only and do not limit or expand the contents of any such section or subsection.
(j) No Assignment. Employee may not assign this Agreement in whole or in part. (k) Execution Electronically and in Counterparts. This Agreement may be executed electronically and/or in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A photocopy, facsimile, or electronic transmission of the Agreement, including signatures, shall be deemed to constitute evidence of the Agreement having been executed.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES ON NEXT PAGE]

SIGNATURE PAGE FOR AGREEMENT FOR EMPLOYMENT AGREEMENT

BETWEEN THE CITY OF MILPITAS
AND ________________
IN WITNESS WHEREOF, the Parties have executed and entered into this Agreement effective as of the Effective Date stated in the Agreement.

Dated: CITY OF MILPITAS
By
Mayor
Dated: EMPLOYEE
By
[NAME]
Approved as to Form:
_____________________________________
Acting City Attorney